Opinion
No. MMX FA-04-010 33 35
April 4, 2007
MEMORANDUM OF DECISION MOTION FOR CONTEMPT (MOTION 182 DATED NOVEMBER 7, 2006) MOTION TO MODIFY JUDGMENT (MOTION 179 FILED OCTOBER 11, 2006)
The parties presented evidence relating to the defendant's motion for contempt and the plaintiff's motion to modify judgment. The defendant claims that her former husband violated court orders when he failed to pay a court-ordered property distribution and further alleges that based upon past practices he will be in contempt at future dates. The plaintiff sought a modification of the original judgment based upon an alleged change in financial circumstances.
I. Facts of the Case
On December 23, 2004 the trial court dissolved the marriage of the parties and entered orders resolving all the parties' differences, including custody, support, alimony, property division, and counsel fees. The orders incorporated a voluntary agreement of that same date. As part of the agreement the judgment incorporated the following provisions:
Plaintiff is ordered to pay child support in the amount of $264 per week in accordance with the child support guidelines.
Both parties are to maintain health insurance for the two minor children during their minority as available at a reasonable cost . . . The father will pay 62% and the mother will pay 38% of unreimbursed expenses, again, in accordance with the guidelines . . .
If there are future daycare expenses for the minor children, the father will pay 62% and the mother will pay 38% of the expenses, again, in accordance with the State of Connecticut child support guidelines.
Alimony: The Court finds that the defendant has an earning capacity of approximately $20,000 per year, which is roughly 40% of the plaintiff's earning capacity. The plaintiff is to pay the defendant the sum of $125 per week as periodic alimony for a term of three (3) years from that date of this judgment. Such order shall be non-modifiable as to term . . .
Property Distribution: Plaintiff husband shall pay to the defendant wife within 90 days the sum of $20,000.00. If the plaintiff husband is unable to pay the entire $20,000 within 90 days, then he shall execute a mortgage note and deed in favor of the defendant wife in the principal amount of $20,000 or whatever he is unable to pay within the 90 days together with interest at the rate of 5 percent per year payable in 48 equal monthly installments commencing no later than April 1, 2005.
The plaintiff's landscaping business and all trucks, equipment related thereto shall be the plaintiff's sole property free and clear of any claim by the defendant.
Within a week of the judgment, the defendant filed her first motion for contempt. Within ninety days the plaintiff filed his first motion to reopen and modify the judgment. Pursuant to one of those postjudgment motions, on October 24, 2005, pursuant to agreement by the litigants and based upon a reduction in the plaintiff's business income, the court ordered a reduction in the plaintiff's child support obligation. At that time, the court ordered the plaintiff to pay $176 per week in child support.
On August 16, 2006 the plaintiff filed the instant motion to modify the existing support orders, claiming a "significant" reduction in income. On November 7, 2006 the defendant filed the instant motion for contempt. Therein she alleged "Mr. Miller keeps threatening not to pay me what the court has ordered several times, and the agreements that he has signed over time. He owes me $1,740.00 as of today. This needs to stop."
In December 2004, the time of the dissolution hearing, the plaintiff owned a Landscaping business. That twenty-five-year enterprise generated $300,000 in gross income. The trial court found that at the time of the dissolution the landscaping business provided approximately $50,000 in net income.
Following the dissolution, the plaintiff suffered a drop in net income when he lost a critical employee: a foreman who established a competing landscaping business, taking with him not only skill but also several of the plaintiff's customers. The loss of customers made it difficult for the plaintiff to market his business. Nevertheless, he had solicited the aid of a broker in his efforts to sell this once active operation.
This former employee had been developing the competing enterprise for a long period of time.
More recently the plaintiff lost customers due to his inability to deliver services during the autumn months. That period of time is critical for this landscaper and his customers. Unfortunately, the defendant chose to initiate foreclosure proceedings during that time frame. The foreclosure, and the attendant court time and relocation, meant that the plaintiff was not available for fall cleanup, work that historically generated $40,000 in gross income. During the past season the plaintiff earned $1,600.00.
The plaintiff's business equipment inventory is less than that at the time of the dissolution. A loan company repossessed his 1999 pick-up truck. He has little equipment left. A business ledger indicated that the plaintiff's business had generated $4,143 from November 2006 to the date of this hearing. During the 2006 year, that business operated at a loss.
Finally, since the dissolution, the plaintiff's physician has advised him that he should seek disability benefits. His health is such that he cannot continue landscaping labors. Because he is not insured, the plaintiff had not received may needed medications.
Pursuant to the dissolution judgment, the plaintiff received the former marital home, but was required to pay his former wife $20,000, her share of the equity. The defendant received a mortgage in the amount of that interest. When the plaintiff failed to pay that mortgage in a timely fashion, the defendant foreclosed. The plaintiff moved to his current address, a storage rental unit in Harwinton.
The foreclosure is an indication that the plaintiff did not have the funds necessary to meet his court obligations.
At the time of the foreclosure sale in late November, the defendant received her property interest, all past due child support and alimony, and her costs. As of that date, the plaintiff owed nothing. He received some monies from that sale, but does not have any remaining funds. The defendant has transferred the bulk of her funds to her father.
During this entire period, the plaintiff continued spending parenting time with the two children issue of this marriage. He is with the children four days a week. Because he chose to rent in Harwinton, each visit required a long commute.
II. Motion for Modification
The parties' dissolution judgment provides that the plaintiff was obligated to provide alimony and child support. He now alleges that he has had a reduction in income such as to warrant a modification.
To modify that court order, the plaintiff must comply with relevant statutory criteria. Connecticut General Statutes 46b-86(a) provides in relevant part:
. . . [A]ny final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial.
The statutory prerequisites for modification of alimony and child support are clear. There must be a substantial change in circumstances. The plaintiff, the moving party, has the burden of "clearly and definitely" demonstrating that substantial change of circumstances. Richard v. Richard, 23 Conn.App. 58, 61, 579 A.2d 110 (1990). "That party must demonstrate that continued operation of the original order would be unfair or improper." Harlan v. Harlan, 5 Conn.App. 355, 357, 496 A.2d 129 (1985).
"The substantial change in circumstances provision establishes the authority of the trial court to modify existing child support orders to respond to changed economic conditions. Specifically, it allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes. The party seeking modification of a support order bears the burden of clearly and definitely [showing] individual facts and circumstances which have substantially changed." (Internal quotations omitted; internal citations omitted.) Gaffey v. Gaffey, 91 Conn.App. 801, 806, 890 A.2d 572 (2005) (Internal citations and quotations omitted).
The plaintiff has established the substantial change in circumstances. His landscaping business is operating at a significant loss. Medical conditions preclude gainful employment in the immediate future. It is unfortunate that neither litigant has any income or any assets. That is the reality in the present case. This court cannot supply the defendant and her children that which is required in the present case, a steady stream of revenue.
Based upon the testimony provided at the present hearing, this court suspends the plaintiff's alimony obligation, effective October 23, 2006. The child support obligation remains in effect.
III. Motion for Contempt
Through her motion for contempt the defendant has asked the court to find that the plaintiff willfully violated the dissolution judgment in that he failed to pay alimony and child support in a timely fashion.
This court is not permitted to consider issues outside of those raised in the pleadings. Yellow Pages Consultants v. Omni Home Health Services, Inc., 59 Conn.App. 194, 200, 756 A.2d 309 (2000). See also Connecticut Practice Book 25-26 which provides "Each motion for modification shall state the specific factual and legal basis for the claimed modification . . ."
Connecticut procedure authorizes motions for contempt, one of the few vehicles available to enforce compliance with court orders. The burden of establishing a prima facie showing of contempt, in this case the willful disobedience of a court order, falls upon the defendant. In the present action, the defendant has established the existence of an order. She has failed to prove that the plaintiff willfully failed to comply with that order.
At hearing on these motions, both litigants acknowledged that when the defendant successfully foreclosed on the former marital home, and received her portion of the property distribution, she also received all monies due from alimony and child support. At that point, the plaintiff had purged himself of the contempt that was the subject of the previously filed contempt motion. The plaintiff's ability to secure relief through the contempt hearing is precluded by the fact that after she filed that judgment, she sought, and received, the foreclosure. Having chosen a remedy, she cannot seek a second form of court-ordered relief.
Furthermore the plaintiff had a significant income reduction, one that necessitated the foreclosure. There is no credible evidence here that the plaintiff "wilfully depleted his or her earnings with a view toward denying or limiting" the amount of alimony or support to be paid; Schmidt v. Schmidt, 180 Conn. 184, 190, 429 A.2d 470 (1980); or "wilfully restricted his earning capacity to avoid support obligations." Bleuer v. Bleuer, 59 Conn.App. 167, 170, 755 A.2d 946 (2000). Although the plaintiff's child support arrearage violated the court's orders, noncompliance with an order of the court does mandate a finding of contempt. As the court held in Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985), "[t]he fact that the order had not been complied with fully, however, does not dictate that a finding of contempt must enter. It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order." Inability to comply is a good defense to a claim of contempt. Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988), the burden of which the alleged contemnor has the burden of proving. Zivic v. Zivic, 26 Conn.App. 5,10, 596 A.2d 475 (1991).
Acknowledging the broad equitable powers of this court, ". . . a finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases." (Citations omitted; internal quotation marks omitted.) Sqarellino v. Hightower, 13 Conn.App. 591, 595-96, 538 A.2d 1065 (1988). This defendant has failed to do. In light of this evidentiary deficiency, the motion must be denied.
BY THE COURT